### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00689- CV

In re R. Lowell T hom pson

ORI GINAL P ROCEEDI NG F ROM TRAVIS CO UNTY

O P I N I O N

Rel at o r R. L owell Thom pson, acting in his officia l capa city as t he dis trict attorney of Nava rro County , Texas, filed a motion to rec use Respondent, the Honora ble Charlie Ba ird, J udg e of the 299th District Co u rt o f T ra vis County , Texas, in a proce eding sty led In re: Cameron Todd
W illingham and g iven Cause No. D-1-D C-10-100069. J udg e Ba ird declined to rule on the motion, concluding that Thompson la cked standing to file a motion to rec use beca use he was not a party to the proce eding

. I n this orig inal proce eding befor e this Court, Thompson seeks a writ of mandamus
to compel J udg e Ba ird to follow the rec usal proce dure outlined in Texas Rule of Civil Procedur e 18a by either rec using himself or ref err ing the motion to the presiding judge of the administrative judicial district. We will conditi onally g rant the w rit.

F ACTUAL AND P ROCEDURAL BACK GR OUND Real Parties in I ntere st Eug enia Wil lingha m and Patricia Wil lingham Cox (“ the Relatives”) are s o me o f th e surviving rela tives of Cameron Todd Wil lingha m, a Nava rro County man convicted of murder in 1992 and executed by the State in 2004. Asserting t h at W i l l i n g ham wasinnocent of the crime fo r wh i ch he was convicted and that “off icials of the State committed the offe nse of officia l oppression” by , among other things, “ende avoring to preve nt the t ru t h from

em erging following [W illingham’s] execution,” the Relatives filed a petition reque sting that t h e trial court

convene a C ourt of I nquiry , pursuant to Texas Code of Criminal Procedur e Article 5 2

. 0 1 (a ), to investiga

te whether offe nses ag ainst the laws of Texas have been committed, and issue a decla ration t hat M r. W illingham was wrong fully convicted and that otherwise repa irs the injury done to his reputa tion, as provided by Article 1, Section 13 of the Texas Constit ution and Secti o n 7 1.021(a) of the Texas Civil Practice and Remedie s Code.

See generally Tex. Code Crim. Proc. Ann. art. 52.01-.09 (West 2006) (desc ribing Court-of-Inquiry
proce dure)

. Thompson, the curr ent district atto rney of the county that prosec uted Wil lingham, filed a motion to rec use J udg e Ba ird, asser ting that he was biased. I n response , the Relatives arg ued that Thompson la cked standing to bring a rec usal motion beca use the Court-of-I

nquiry proce eding that their petition invoked was “ ex parte ,” and, conseque ntly , that Thompson was not a “par ty ” as 1 require d by Rule 18a. See Tex. R. Civ. P. 18a(a ) (“[A]ny party may file

. . . a motion stating g rounds why the judge

. . . should not sit.” (Emphasis added.) ). After considering arg uments from Thompson and the Relatives, J udg e Ba ird conclude d that Thompson w as not a party and thus lacke d standing
to file a motion to rec use. I n light of that conclusion, J udg e Ba ird declined to rule on the merits of

Ex parte is define d as: “Done or made at the instance and for the benef it of one party only , 1 an d wi t h o u t notice to, or arg ument by , any person adverse ly interested.” Bla ck’s L aw Dictionary 657 (9th ed. 2009). 2the motion and immediately proce eded to commence an evidentiar y hear ing. T h e exact nature of that evidentiar y hear ing is not clea

r, but the Relatives descr ibe it to this Court as a pre- Court-of-I nquiry
proce eding being conducte d for the pu rp o s e o f gather ing fac ts to deter mine whether J udg e Ba ird would issue an aff

idavit reque sting the commence ment of a Court of I nquiry

. See Tex. Code Crim. 2
Proc. Ann. art. 52.01(a) (re quiring jud ge to make aff idavit evidenc ing probable cause that “an offe nse has been committed” befor e reque sting that presiding judge of admin is tr a ti v e judicial district appoint differ ent district judge to c ommence Court of I nquiry ). Thompson filed a petition for writ of mandamus and emer g ency motion for stay in this Court seeking to compel J udg e Ba ird to rule on the rec usal motion and otherwise comply with the require ments of Rule 18a. See Tex. R. Civ. P. 18a (re quiring that, on filing of motion to rec use, judge must take no fur t h er ac t i on in case and either (1) re cu s e h i m self, or (2) forwa rd motion to presiding judge of administrative judicial district for hear ing) . We temporarily stay ed the pr ocee dings be low pending our dec ision here.

DISCUSSIO N Mandam us Ju risdiction

As a thre shold issue, the R elatives arg ue that we lack jurisdiction to issue a wr it of mandamus beca

use, they asser

t, J udg e Ba ird “is not acting in his capa city as a judge of a district court, but rathe r in his capa city as a mag istrate.” Section 22.221 of the g overnme nt code define s and limit s our mandamus jurisdiction. I t provides, in pertinent pa rt:

I n ligh t o f o u r analy sis below, we need not decide whether such a proce dure would be 2 proper under Te x as law. 3(b) Eac h court of appea ls for a court of appea ls district may issue all writs o f mandamus, ag ree able to the principles of law reg ulating those writs, ag ainst a: (1) judge of a district or c ounty court in the c ourt of appe als district; or (2) judge of a district court who is acting as a m agi s trate at a court of inq u iry under Chapter 52, Code of C riminal Procedur e, in the court of appe als district.
Tex. Gov’t Code Ann. § 22.221(b) ( West 2004). The Relatives a rg ue that
althoug h section 22.221(b)( 2) authori ze s th e Co u r t to e xe r c is e ma

n d a mu s jurisdiction ag ainst a judge acting as a mag istrate, that mandamus jurisdiction is expli citly lim ite d to a judge acting as a mag istrate “at a court of inquiry .” Her e, no court of inquiry has been c onvened . . . .

The Relatives arg ue that article 52.01(a) of the code of criminal proce dure contemplates a two-step
proce dure in Court-of-I nquiry proce eding s. See Tex. Code Crim. Proc. Ann. art. 52.01. They asser t that the proce eding s below wer e mere ly part of the first step, in which J udg e Ba ird was acting as a mag istrate in a proce eding that was not itself a “Court of I nquiry ” as that term is define d by the code of criminal proce dure and used i n subsection 22.221(b)(2) of the gover nment code. Acc ording ly , they contend that section 22.221(b) of the gover nment code does not authorize this Court to issue

a writ of mand am u s in the prese nt circ umstances beca use J udg e Ba ird was neither acting in his
capa city as a district judg e nor a cting as a ma g istrate at a Court of I nquiry

. W e n eed not decide whether the Relatives are corr ect in asser ting that t h e proce eding s below, as they depict them, are not a “Court of I nquiry ,” beca use the rec ord establishes

our mandamus authority over the case pursuant to subsection 22.221(b)(1), without reg ard to

4subsection (b)( 2). The Relatives’ orig inal petition, labeled “Petition to Convene a Court of I nquiry

and for a Dec lara tion to Remedy I njury to Mr. Wil lingha m’s Reputat i o n Un d er the Texas Constit ution,” asked f

or the following specific relief :

A. Find, pursuant to Texas Code of Criminal Procedur e Article 52.01(a) , that there is probable cause to believe that offe nses ag ainst the laws of Texas have been c ommitt ed;
B. Enter into the minutes of the Court, pursuant to Article 52.01(b)( 1), a sworn aff idavit stating the substantial fac ts establishing probable cause that one or more off enses a g ainst the laws of Te x as we re c ommitt ed; C. File, pursuant to Article 52.01(b)( 2), a copy of the aff idavit with the District Clerk;
D. Dec lare that Mr. Wil lingham was wrong fully convicted, and that all leg al disabiliti es attaching to him or his survivors as a result of that conviction are fore ver r emoved;
E. Request, pursuant to Article 52.01(b)( 2), the Presiding J u d ge of the Administrative J udicial District to appoint a judg e to commence a C ourt of I nquiry to investiga

te these ma tters furthe r . . . .
Thus, the petition sought two diff ere nt forms of re lief. Unde r subpar ag raphs A, B , C, and E, the Relatives soug ht to initiate the proce ss se t f orth in article 52.01. I

n subpara g raph D , howeve r, the Relatives soug ht a decla ration that “Mr. Wil lingham was wrong fully convicted.” This second ty pe of reque st is in the nature o f a d ec l aratory -judg ment claim, which is nece ssarily addre ssed to the cour t i n i t s j u d i cial, rathe r than mag isterial, capa city

. I n other words, the claim
soug ht relief that J udg e Ba ird could only have g rante d while acting in his capa city as a district judge ,
no t wh i l e acting in his capa city as a mag istrate. Thompson’s motion to rec use soug ht to have
J udge Ba ird rec use himself from the entire case , which nece ssarily included the reque st for

5decla

ratory relief

. Acc ording ly , the R elatives’ pray er f or dec lara tory

relief bring s this case within

our mandamus jurisdiction over a judge of a district c ourt in our appellate district. See Tex. Gov’t Code Ann. § 22.221(b)( 1); see also Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (West 2008) (dec lara tory -judg ment statute). We disag ree with the Relatives’ attempt to char acte rize their reque st for de clar atory

relief as part of or incide nt to a Court-of-I nquiry proce eding , beca

use such r elief is
not available from a Court of I nquiry

. See Tex. Code Crim. Proc. Ann. arts. 52.01, .08 (sole end of Court of I nquiry is to deter mine whether “an offe nse has been committed” and, i f s o , to “issue a

war rant for the arr est of the offe nder as if complaint had b ee n m ade and filed”)

. Acc ording ly ,
we conclude that we have jurisdiction to issue a writ of m an d amus in the prese nt case under subsection 22.221(b)( 1) of the g overnme nt code. We now turn to the question of whether mandamus relief is warr anted unde r the pre sent circ umstances.

Thom pson’s Party Stat us Under Ru le 18a The Relatives a

rg ue that Thompson is not a party to the case below and thus doe s not have “ standing ” under Rule 18a to file a motion to rec use. Rule 18a state s in pertinent par t:

At least ten da

y s befor e the da te set for

trial or other

hear ing in a

ny court other than the Supreme Court, the Court of Criminal Appeals or the court of a ppeals, any party may

file with the cler

k of the c ourt a motion stating g rounds why the judge befor e whom the c ase is pending should not sit in the case

.

Tex. R. Civ. P. 18a(a ) (empha sis added)

. Thompson arg ues that he is, or should be deeme d, a party beca use J udg e Ba ird invited him to participa te in the proce eding s an d beca use the State has a justiciable interest in the case sufficie nt to establish standing

. The Relatives respond that Thompson

6“is not a party to the proce eding b ef o re [ J u d ge Ba ird], which is an ex parte , non-adve rsar ial, preliminary

hear ing to de termine whe ther ther e is probable cause to convene a cour t-of-inquiry .” A s d is c u s s e d a

b ove, we find the Relatives’ “ ex- parte ” arg

ument unconv in c in g in li g h t of their reque st f

or dec lara tory

relief from the tria l court. Any authority the trial court would have
to g rant decla

ratory relief would stem from the Uniform Dec lara tory J udg ments Act, see Tex. Civ.
Prac. & Rem. Code Ann. §§ 37.001-.011, which does not contemplate ex parte proce eding s. To the
contra ry , the Act require s that all interested persons must be made part i es an d states that a decla ration does not pre

judice the r ights of a

non-par ty :

When decla

ratory relief is soug ht, all persons who have or cla i m any interest that would be af

fec ted by the declara tion must be made pa rties. A dec lara tion does not prejudice the rig hts of a per son not a party to the proce eding

.
Tex. Ci v. Prac. & Rem. Code Ann. § 37.006.

The State of Texas prosec uted Wil lingham and obtained a judgme nt o f conviction
ag ainst him. The Relatives seek a judicial decla ration that would be inconsistent with that judgme nt. I t g oes without say

ing that the State has an “intere st that would be aff ecte d” by such a decla

ration. Thompson, the district attorney of the county that prosec uted Wil lingha m on behalf of the State, is

a logic al person to repr esent the State’s interest i n t h at i nquiry

. Acc ording ly , we hold that Thompson, on behalf of

the State, has met the “ party ” re quirement of Rule 18a

.

7Is Mandam us Relief Available? The Relatives arg u e t h at m andamus relief is not available here beca use Thomps on has an ad eq u at e reme dy by appea l. Mandamus is available when there is (1) a clea r abuse of discretion by the trial court, and (2) no adequate reme dy by appea l. In re Prudential Ins. Co. of Am. , 148 S.W .3d 124, 135-36 (Te x . 2004).

A trial court abuses its discretion when it reach es a d ec ision so arbitra ry or

unreas o n ab l e as to amount to a clea r and prejudicia l err or of law. BMC Software Belg., N.V.

v. Marchand , 83 S.W .3d 789, 800 (Tex. 2002). When it comes to deciding what law applies—eve n if that law is unsettled—or in ap ply ing that law to the fac ts of the case , the trial court has no discretion. In re Prude ntial , 148 S.W .3d at 135.

“An appellate reme dy is ‘ade quate’ when any benef it s t o m andamus revie w are outwei gh ed b y t h e d etrim ents.” Id. Thus, the word “ade quate” is rea lly a proxy for the car eful balanc ing test appellate courts apply in deter mining whether the benef its outweig h the detriments. Id. This test considers “both public and privat e i n t er es t s . ” Id. I n g ener al, we avoid mandamus revie w of “incidenta l, interlocutory ruling s” beca use such revie w is often unproductive, expensive, and distracts courts from important issues in the dispositi on of the case and the uniform development

o f t h e law. Id. But we employ mandamus review of important or novel situations in exc ep t i o n al

ca ses beca

use such revie w may prese rve a party ’s substantial rig hts from impairment, allow the appellate court to g ive “nee ded and helpful direc tion to the law that would otherwise prove elusive in appea ls from finals judgme nts,” and reduc e the waste of time and money resulting from the
eventua l reve rsal of improperly conducte d proce eding s. Id. We rema in m i n d fu l that our

8contemplation of whether there is an adequate reme dy on appea l “is not an abstrac t or formulaic one;

it is practical a

nd prudential.” Id.
(i) Abuse of Discre tion Rule 18a imposes ce rtain manda tory require ments on a judg e once a motion to

rec use is filed:
(c) Prior to any further proce eding s in the case , the judge shall either rec use himself or request the presiding judge of the admini strative judi cial dis trict to a ssign a judge to he ar such motion. I f the judge rec uses himself, he shall enter an order of rec usal and reque st the presiding judge of the administrative judicial district to assig n another judge to sit, and shall make no further order s and shall take no further action in the case except for g ood cause stated in the order in which such a ction is taken. (d) I f the judge declines to rec use himself, he shall forwa rd to the presiding judge of the administrative judicial district, in either orig inal form or cer tified copy , an order of ref

err al, the motion, and all opposing and concur ring statements. Ex cept for g ood cause stated in the order in which further action is taken, the judge shall make no further order s and shall take no further action in the case afte r filing of the motion and prior to a hear ing on the motion. The presiding judge of the administrative j u d icial district shall immediately set a hear ing befor e himself or some other judge desig nated by him, shall cause notice of such hea ring to be g iven to all parties or their counse l, and shall make such other order s including order s on interim or ancillar y relief in t h e p ending cause as justice may

require

.

Tex. R. Civ. P. 18a; see also Tex. Gov’t Code Ann. § 74.059(c) (3) (West 2005) (judg e must “re quest the presiding judge to assig n another judge to hear a motion rela ting to the rec usal of the judge from

a ca se pending in his court”).

Other courts of appea ls have conclude d that Rule 1 8 a’s rec usal-or- ref err al require ment is mandatory and that mandamus relief i s appropr iate to compel compliance with t he

9rule. See, e.g. , In re Kiefer , No. 05-10-00452- CV, 2010 WL 2220588, at *1-2 (Tex. App.—Dallas

J une 4, 2010, orig

. proce eding ) (mem. op.) (r ec u s al o r ref err al “manda tory ”); In re Norman , 191 S.W .3d 858, 860 (Tex. App.—Houston [14t h Dist.] 2006, orig

. proce eding ) (Rule 18a states that judge has “manda tory duty either to rec us e h i m self or ref er the motion to the presiding judge ”);
In re Healthmark Partners, L.L.C

. , No. 14-04-00743- CV, 2004 WL 18 9 9 9 53, at *1 (Tex. App.—Houston [14t h Dist.] Aug

. 26, 2004, orig

. proce eding ) (mem. op) (same) ; In re Rio Grande Valley Gas Co. , 987 S.W .2d 167, 179-80 (Tex. Ap p . — Corpus Christi 1999, orig

. proce eding ) (same) ; see also Arnold v. State , 853 S.W .3d 543, 544 (Tex. Crim. App. 1993) (rule 18a applies in criminal case s); see also Ex parte Sinegar , No. AP-76340, 2010 WL 4320399, at *2-3 (Tex. Crim. App. Nov. 3 , 2 0 1 0) (rule 18a also applies in habea s proce eding s). L ikewise, construing a substantially simil ar statutory prede cessor to Rule 18a, the Texas Supreme Court has held that (1) a judge has “the mandatory duty ” to re cuse himself or ref er the matter to the presiding judge to he ar

a p ro p er l y filed motion to rec use, and (2) mandamus relief is proper to compel compliance

. See McLeod v. Harris , 582 S.W .2d 772, 775 (Tex. 1979). We ag ree that the provisions of Rule 18a are mandatory ; they cannot be rea sonably rea d otherwise. Consequently , J u d ge Ba ird abused his d i scre tion by failing to either rec use himself or ref er the motion to the presiding judge o f t h e administrative judicial district. See In re Prudential , 148 S.W .3d at 135 (judg e has no discretion in apply ing f

acts to law)

. (ii) Adequate Rem edy by Appeal Having conclude d that J udg e Ba ird abused his discretion, we must deter min e if Thompson has an adequa t e reme dy by appea l. The “[d] enial of a motion to rec use is appea lable

10upon final judgme nt. Thus, a rela tor challeng ing the denial of a rec usal m o t i o n o rd i narily has an

adequate reme dy by appea l of the denial of a motion to rec use.” In re Norman , 191 S.W .3d at 860;

see also Tex. R. Civ. P. 18a(f ) (providing that denial of motion is appea lable from final judgme nt).
Her e, howeve r, the trial judge has not denied the motion to rec use, but has ref used to rule on it. As noted above, in such circ umstances, courts have conclude d that no adequate reme dy by appea l exis ts and have g rante d mandamus relief

. See McLeod , 582 S.W .2d at 775; In re Norman , 191 S.W .3d at 860 (“[The trial judge ] had a mandatory duty either to rec use himself or ref er the motion to the presiding judge

. . . . We conditionally g rant the petition for writ of mandamus.”) ; In re Healthmark Partners, L.L.C

. , 2004 WL 1899953, at *2 (“I n the circ umstances of this case , [t he trial judge ] had

o n l y t wo o p t i o n s, rec usal or ref err al. Be cause she took neither, we g rant

. . . the petition for writ of manda mus.”).

We a g ree that, under the circ umstances prese nted here , Thompson ha s no adequate

reme dy by appea l. First, this is a novel and important case with wide public interest, which provides

an opportunity for this Court to g ive “nee ded and helpful direc tion to the law that would otherwise
prove elusive.” In re Prudential , 148 S.W .3d at 136. Second, the parties’ rig ht to an impartial judge is at risk by the judge ’s failure to consider and rule on the motion to rec use. Id. Although we acknow ledg e that the rule’s provision for appea l afte r the denial of a motion to rec use may provide an adequate remedy in that situation, that reme dy is inadequa te, where, as here , a judge refuses to rule. Allowing a judg e ac cused of bias to improperly

decline to r efe r the matter to a neutra l judge and to conduct potentially biased proce eding s injects an u n ac ce p table risk of actua l bias and—importantly for interests of the judicial sy stem at larg e—the potential appea ranc e of bias. See

11Aetna Life Ins. v. Lavoie , 475 U.S. 813, 825 (1986) (“[T]o perf orm its high function in the best way , justice must satisfy

the appea

ranc e of justice.” (I nterna l quota tion mar ks omitted.)). Waiting until final j udg ment to appea l the judge ’s fa ilure to rule on a rec usal motion—if such an appea l is even available —would not be an adequate reme dy beca use it could not sufficie ntly corr ect the perc eption

o f bias eng ender ed by the judge ’s failure to allow the merits of the rec usal motion t o b e t i m el y addre ssed by a neutra l judge

. Third, g ranting mandamus relief here will not cause appre ciable delay

or cost to the parties or the judicial sy s t em , while mitigating the risk of harm cause d by the
appea ranc e of bia s. See I

n re Prudential , 148 S.W .3d at 136.
The Relatives’ Argum ents Regardin g the Merits of the Moti on to R ecuse

Finally , the R elatives assert t hat t he grounds of Thompson’s motion to rec u s e lack merit. Thus, they invite us to consider the merits of t he mot ion and, based on that revie w, refra in from exercising o ur discretionar y mandamus authority

. Reviewing the merits of the motion to

rec use, howe ver, is bey ond the limited scope of our i nquiry here

. See In re He althmark Partners , L.L.C

. , 2004 WL 1899953, at *2 n.3. Moreove r, contra ry to the Relat i v es’ arg uments, failure to revie w the merits will not c ause unreme diable delay or hardship to the Relatives should the merits
prove g roundless, beca

use Rule 18a(h) allows the judge assig ned to hear the rec usal motion to issue sanctions if he conclude s that the motion was broug ht for delay and wit h o u t s u ff i cient cause . See Tex. R. C iv. P. 18a(h). CONCLUSION

We hold that, upon the filing of Thom p s o n ’s motion to rec use, J udg e Ba ird was required t o ei t h er recuse himself or ref er the motion to the presiding judge of the administrative

12judicial district and that he abused his discretion by failing to do so. Concluding that mandamus

relief is authorized and war rante d, we conditionally g rant Thompson’s petition. The writ will issue only if the trial court fails to comply with this opinion. The stay of proce eding s issued by this Court on October

14, 2010 will remain in eff ect until J udg e B aird c omplies with thi s opinion.

J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton; Dissenting O pinion by J ustice Pury ear Filed: De cembe r 21, 2010

13